Case Name: Paulina Jane v. William Charles Morning
Case No.: 17-CV-317441

Currently before the Court is the demurrer by defendant William Charles Morning (“Defendant”) to the complaint of plaintiff Paulina Jane (“Plaintiff”).

Factual and Procedural Background

This is an action for fraud, intentional infliction of emotional distress, and violations of the Business and Professions Code. On December 14, 2016, Plaintiff and Defendant entered into a six-month lease whereby Defendant agreed to pay Plaintiff $1,380 per month to rent a room in her home. (Complaint, ¶ 5.) Pursuant to the terms of the lease, “a $2,000 security deposit was made by [Defendant].” (Ibid.) In the lease, Defendant indicated that he owned a home in Placerville, California. (Ibid.)

In January 2017, Plaintiff began dating Defendant. (Complaint, ¶ 6.) At that time, Plaintiff intended to perform repairs on two rental properties that she owned in Saratoga, California. (Id. at ¶ 7.) Defendant learned of Plaintiff’s plan and offered to help her with plumbing repairs in his spare time. (Ibid.) Plaintiff “inquired as to how much [Defendant] would charge for his time and labor.” (Id. at ¶ 8.) Defendant “insisted and represented that any assistance he provided would be of no charge. … [He] indicated that [Plaintiff] could compensate [him] by occasionally buying him coffee and doing his laundry.” (Ibid.) Plaintiff orally agreed to this arrangement and “also offered to pay for [Defendant’s] meals anytime [he] worked on the two rental properties.” (Ibid.) Defendant accepted this offer. (Ibid.)

About two months later, Defendant told Plaintiff he had been laid off from his job and “found another work project in South Sacramento that would take approximately 10 days.” (Complaint, ¶ 11.) Defendant told Plaintiff that he would return after the project was finished. (Ibid.)

After Defendant left, Plaintiff did not hear from him and she became worried. (Complaint, ¶ 12.) She looked in Defendant’s room and discovered he had moved out. (Ibid.) Plaintiff tried to reach Defendant and left him a message that she was going to visit his Placerville home. (Id. at ¶ 13.) Defendant responded to the message and told Plaintiff that “he was still in a relationship with his domestic partner in Placerville.” (Ibid.) Defendant allegedly “warned [Plaintiff] that if his domestic partner learned of [her], his partner, who owned a gun, could potentially hurt or even kill [her].” (Ibid.) In addition, Defendant allegedly “alluded to hurting [Plaintiff] himself if she continued to harass him about payment, indicating that he too had access to a gun and that [his] domestic partner was a police officer who could cover up any foul play.” (Ibid.)

On March 26, 2017, Defendant agreed to meet Plaintiff at a coffee shop in Placerville. (Complaint, ¶ 14.) During the meeting, Defendant “orally agreed to pay $2,000 for the security deposit he owed … [Plaintiff].” (Ibid.) He also “orally agreed to pay April’s rent on April 1, 2017.” (Ibid.) Subsequently, Defendant made payments in the total amount of $1,380. (Id. at ¶ 15.) Defendant did not “pay the $2,000.” (Ibid.)

In May 2017, Plaintiff sued Defendant in small claims court, “seeking damages for lost rent and the costs associated with trying to enforce the lease agreement.” (Complaint, ¶ 16.) Following a hearing in June 2017, Defendant approached Plaintiff regarding a possible settlement and Plaintiff agreed to meet Defendant at a restaurant to discuss the same. (Id. at ¶ 17.) During their meeting, Plaintiff and Defendant orally agreed on a settlement amount. (Id. at ¶ 18.) However, Defendant refused to put their agreement in writing. (Ibid.) Defendant allegedly “told [Plaintiff] that he would sign a written agreement only if she agreed to spend the weekend with him in Pacifica and sleep with him.” (Ibid.) Plaintiff rejected Defendant’s proposition. (Ibid.) Thereafter, Defendant threatened to sue Plaintiff. (Ibid.)

In September 2017, Defendant served Plaintiff with a cross-complaint, falsely alleging that the parties “entered into a contract for services rendered by [Defendant] at [the] two rental properties in Saratoga” and Plaintiff owed him $9,000 under the terms of that contract. (Complaint, ¶ 19.) Defendant also presented “a fabricated timesheet of his labor to the small claims court.” (Id. ¶ at 20.)

As of mid-October 2017, a final judgment had not been entered in the small claims case. (Complaint, ¶ 22.)

Based on the foregoing allegations, Plaintiff filed a complaint against Defendant on October 16, 2017, alleging causes of action for: (1) intentional misrepresentation; (2) fraudulent concealment; (3) intentional infliction of emotional distress; (4) violation of Business and Professions Code sections 7160 and 7161; and (5) violation of Business and Professions Code section 7026, et seq.

On January 29, 2018, Plaintiff filed a request for dismissal, without prejudice, of the fifth cause of action. On the same day, the court clerk entered the dismissal as requested.

Defendant filed the instant demurrer to the complaint on May 8, 2018. On July 31, 2018, Plaintiff filed papers in opposition to the demurrer.

Discussion

Defendant demurs to the first through fifth causes of action of the complaint on the ground of failure to allege facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).) Defendant also demurs to the first, second, fourth, and fifth causes of action of the complaint on the ground of uncertainty. (See Code Civ. Proc., § 430.10, subd. (f).)

I. Request for Judicial Notice

Defendant asks the Court to take judicial notice of the following court records: Plaintiff’s Claim and Order to Go to Small Claims Court; his Claim and Order to Go to Small Claims Court; the Notice of Entry of Judgment filed in the small claims case; and the Order After Appeal of Trial De Novo filed in the small claims case.

These documents are proper subjects of judicial notice because they are court records relevant to the arguments raised in connection with the pending demurrer. (See Evid. Code, § 452, subd. (d) [permitting judicial notice of court records]; see also People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [“There is … a precondition to the taking of judicial notice in either its mandatory or permissive form—any matter to be judicially noticed must be relevant to a material issue.”]; People v. Woodell (1998) 17 Cal.4th 969B, 455 [“Evidence Code sections 452 and 453 permit the trial court to ‘take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached-in the documents such as orders, statements of decision, and judgments-but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.’ ”].)

Accordingly, Defendant’s request for judicial notice is GRANTED as to the existence of the subject court records and the truth of the results reached in the Notice of Entry of Judgment and the Order After Appeal of Trial De Novo.

II. Legal Standard

The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations and quotations omitted; see Code Civ. Proc., § 430.30, subd. (a).) “It is not the ordinary function of a demurrer to test the truth of the [ ] allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. [ ] Thus, [ ] the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958 (Align), internal citations and quotations omitted.) Moreover, “the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-14.) However, while “[a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions or conclusions of law or fact.” (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1120 (George); Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688 (Piccinini).)

III. First and Second Causes of Action

Defendant argues that the first and second causes of action for intentional misrepresentation and fraudulent concealment, respectively, are uncertain and fail to allege sufficient facts to state a claim because Plaintiff fails to adequately allege that she sustained damages as a result of the alleged fraud and the claims are barred by the doctrine of res judicata.

The first cause of action, as pleaded, is premised on two representations: (1) Defendant’s alleged representation that Plaintiff “would not be under any formal contractual obligation to formally pay [him] for any assistance or labor provided by [him] at [the] two rental properties in Saratoga”; and (2) Defendant’s alleged representation that “the only compensation expected for [his] assistance in repairs and plumbing work at [the] two rental properties in Saratoga would be in the form of [Plaintiff] occasionally purchasing meals and coffee for [Defendant], and doing his laundry.” (Complaint, ¶ 28.) Plaintiff alleges that the representations were false, Defendant knew the representations were false at the time they were made, she relied on the representations, and she suffered resulting damages. (Id. ¶ at 27.)

In the second cause of action, Plaintiff alleges that Defendant concealed the fact that he intended to “formally charge [her] $30/hour for over 250 hours … [of] work [performed] at [her] two rental properties”; “fabricate a false contract between [them] for assistance provided at [Plaintiff’s] two rental properties in Saratoga”; “fabricate dates of when he allegedly performed work on [her] two rental properties”; and “fabricate lost wages of $1,200, lost hotel costs of $370, and lost travel expenses of $100.” (Complaint, ¶ 31.) Plaintiff further alleges that Defendant had a duty to disclose these facts, she relied on the fraudulent concealment, and she was damaged by the fraudulent concealment. (Id. ¶ at 30.)

As Defendant persuasively argues, Plaintiff’s allegations are insufficient to demonstrate that she suffered damages as a result of the alleged misrepresentations or concealments. (See R. D. Reeder Lathing Co. v. Cypress Ins. Co. (1970) 3 Cal.App.3d 995, 999 [“A plaintiff may recover for fraud when he shows that by reason of a defendant’s misrepresentations [or concealments] he has sustained some pecuniary damage or injury by reason of having been put in a position worse than he would have occupied had there been no fraud.”].) While Plaintiff alleges in a conclusory manner that she suffered damages as a result of Defendant’s conduct, this mere conclusion is not accepted as true on demurrer (George, supra, 201 Cal.App.4th at p. 1120; Piccinini, supra, 226 Cal.App.4th at p. 688.) Furthermore, the specific factual allegations set forth in the complaint do not establish that Plaintiff suffered any damages as a result of Defendant’s conduct. As Defendant points out, Plaintiff does not allege that she made any payments to Defendant in reliance on the alleged misrepresentations or concealments that she would not have otherwise made. Additionally, Plaintiff does not allege that she incurred any costs or expenses as a result of her reliance on the alleged misrepresentations or concealments. Thus, it is unclear from the allegations of the complaint what, if any, damages Plaintiff suffered as a result of Defendant’s conduct. On this basis alone, the demurrer is sustainable.

Notably, in light of the absence of sufficient allegations in the complaint regarding Plaintiff’s alleged damages, it cannot be determined at this point in time, as a matter of law, whether the first and second causes of action are barred by the doctrine of res judicata. Res judicata, i.e. claim preclusion, “prevents relitigation of the same cause of action in a second suit between the same parties” and “arises if a second suit involves: (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit.” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 823, 824.) “[F]or purposes of applying the doctrine of res judicata, … [t]he cause of action is the right to obtain redress for a harm suffered, regardless of the specific remedy sought or the legal theory (common law or statutory) advanced.” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798 (Boeken).) “ ‘[T]he ‘cause of action’ is based upon the harm suffered, as opposed to the particular theory asserted by the litigant. Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief. ‘Hence a judgment for the defendant is a bar to a subsequent action by the plaintiff based on the same injury to the same right, even though he presents a different legal ground for relief.’ ’ Thus, under the primary rights theory, the determinative factor is the harm suffered. When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right.” (Id. at pp. 797-98, internal citations and emphasis omitted; Federal Home Loan Bank of San Francisco v. Countrywide Financial Corporation (2013) 214 Cal.App.4th 1520, 1530-32 (Federal) [emphasizing that the “cause of action” is based upon the harm suffered].) Here, it is unclear from the allegations of the complaint what, if any, damages Plaintiff suffered as a result of Defendant’s conduct. Thus, it cannot be said that the small claims case and the first and second causes of action of the complaint seek compensation for the same harm.

Accordingly, Defendant’s demurrer to the first and second causes of action is SUSTAINED, with 10 day’s leave to amend.

IV. Third Cause of Action

Defendant contends that the third cause of action fails to state a claim for intentional infliction of emotional distress because, “[i]n this case, [Plaintiff’s] allegations are simply unbelievable” and illogical. (Mem. Ps. & As., p. 5:12-20.) Defendant also contends that the claim is barred by the doctrine of res judicata.

Defendant’s first argument is not well-taken. On demurrer, “the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Align, supra, 179 Cal.App.4th at p. 958.) Thus, Defendant’s argument that Plaintiff’s allegations are unbelievable or illogical is beyond the scope of demurrer.

Similarly, Defendant’s second argument lacks merit. As stated above, for purposes of res judicata, courts look to whether the alleged harm suffered in the claims is the same in order to determine whether a plaintiff is attempting to relitigate the same cause of action in a second suit between the same parties. (Boeken, supra, 48 Cal.4th at pp. 797-98; Federal, supra, 214 Cal.App.4th at pp. 1530-32.) In the third cause of action, Plaintiff alleges that she suffered severe or extreme emotional distress as a result of Defendant’s attempt to “sexually exploit and harass [her] during settlement discussions” in the small claims case. (Complaint, ¶ 34.) Plaintiff further alleges that she suffered severe or extreme emotional distress due to Defendant presenting false testimony and evidence to the small claims court. (Id. at ¶ 35.) The judicially noticeable documents indicate that Plaintiff’s small claims action sought to recover damages for harm suffered prior to the initiation of the small claims action; specifically, Plaintiff sought to recover damages for outstanding rent, late payment fees, interest, cleaning fees, lock changing fees, a blanket, a drill, and punitive damages. (D’s RJN, Ex. 1, p. 2 and Ex. 3, p. 3.) Therefore, it cannot be said that Plaintiff’s small claims action and the third cause of action of the complaint seek compensation for the same harm.

Accordingly, Defendant’s demurrer to the third cause of action is OVERRULED.

V. Fourth Cause of Action

Defendant argues that the fourth cause of action for violation of Business and Professions Code sections 7160 and 7161 is uncertain and fails to allege sufficient facts to state a claim because Plaintiff does not allege that she paid him any money for the plumbing services rendered; Plaintiff does not allege facts demonstrating that she sustained damages; and the claim is barred by the doctrine of res judicata.

In opposition, Plaintiff implicitly concedes that Defendant’s arguments are well-taken with respect to this claim as she simply states that she “will be dismissing” the fourth cause of action. (Opp’n., p. 9:10-13.)

Therefore, Defendant’s demurrer to the fourth cause of action is SUSTAINED, without leave to amend. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [a court may sustain a demurrer without leave to amend if a plaintiff fails to meet his or her burden to show in what manner the complaint can be amended and how that amendment will change the legal effect of the pleading].)

VI. Fifth Cause of Action

As previously articulated, Defendant demurs to the fifth cause of action on the grounds of uncertainty and failure to allege facts sufficient to constitute a cause of action.
However, Plaintiff dismissed the fifth cause of action from the complaint on January 29, 2018. Consequently, Defendant’s demurrer to the fifth cause of action is MOOT.